Legislature(1997 - 1998)
04/20/1998 03:40 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSHB 285(RES) am - COMM. FISH PERMIT/LIC. REVOCATION
SENATOR GREEN moved to adopt SCS CSHB 285(RES), version Q, as the
working document of the committee. There being no objection, the
motion carried.
BRETT HUBER, Senate Resources Committee Aide, discussed the changes
made in the committee substitute as follows. First, he noted on
page 2, line 9 of the committee substitute, the number 4 was
handwritten in.
The first change in the committee substitute is on page 2 in the
listing of violations and points. Several two point violations
appeared in the original version of the bill. The committee
expressed concern that those violations could occur erroneously,
therefore those two point violations were removed from the
committee substitute.
The second change is also on page 2. The original bill provided
that an offender who admitted to an offense and paid the fine,
would be charged with a violation rather than a misdemeanor, and
would get half the amount of points. That provision was removed
because it provided an incentive to purposely violate since it
could make economic sense in. By merely paying the violation, one
could reduce his/her points by half, which only made the cost of
doing business a little higher.
The next change on page 3 removed a provision that allowed a two-
point reduction in the total cumulative points for every 12-month
period that a permit holder went without another violation.
The fourth change is on line 25, and adds subsection (b). This
provision says a permit holder whose privilege has been revoked may
not engage in the fishery either as a crew member or renting of the
boat to be used in the same fishery from which he/she is suspended.
The concern with that provision was the scenario in which several
family members work one permit, through transfers, so that
provision would limit the economic association with the fishery if
the person's permit was suspended.
The final change is on page 4, line 12. Basically, the bill
disallows emergency transfer of a permit if a person's privileges
were suspended, but there is a loophole in that if someone had 10
points and was charged with another six point violation, a person
could do an emergency transfer of the permit before the six point
violation was adjudicated. This provision disallows emergency
transfers if one has pending violations that would total more than
the allowable points.
CHAIRMAN HALFORD summarized the two basic areas of change as: the
way to stop the family members with the economic association crew
member license and the emergency transfer provision; and how the
points are counted. The minor violations that have no economic
impact on the fisherman were removed. The permit holder not
present violation was dropped from six points to four points
because that is a nebulous area. And, the provision that removes
two points for being good was deleted. He commented he was
originally interested in tying the bill back to the permit. He met
with the Division of Investments' and CFAB staff and they pointed
out many problems associated with that approach. If this bill does
not work after a few years, he would like to readdress that
approach. He noted that using a market approach by devaluing
permits with points against it would provide a strong disincentive.
MR. HUBER stated one open question remains, that being who is
charged if a permit holder is on board asleep and another crew
member commits a violation. He noted that Mr. Hard from the
Department of Public Safety (DPS)was on teleconference and would
respond to questions.
CHAIRMAN HALFORD said that kind of situation happens when a permit
holder is hired by a boat owner. If the only person who gets
charged is the permit holder, even though the boat owner committed
the violation, the boat owner can just hire a different permit
holder the next season. He asked Mr. Hard whether DPS only cites
the permit holder or does DPS cite the operator if the operator and
permit holder are in a partnership and the operator makes the
decisions.
MR. JOEL HARD, Division of Fish and Wildlife Protection, replied
DPS cites both when it can clearly tie the two.
CHAIRMAN HALFORD asked if this bill can then apply to a person who
does not hold a permit.
MR. HARD said that is correct.
CHAIRMAN HALFORD asked the sponsor's staff to comment on the Senate
Resources SCS.
TOM WRIGHT, staff to Representative Ivan, stated Representative
Ivan is concerned about eliminating half-points for violations.
The main concern is that two types of violations exist: a
misdemeanor is committed if there is intent to commit an offense as
opposed to a violation in which a permit holder might drift into
closed waters while asleep at the wheel. The sponsor believes the
half-points for violations should remain in effect. Representative
Ivan's second concern is the elimination of the two point reduction
for no violations within a one year period after a conviction
because it provides incentive to keep one's record clean.
CHAIRMAN HALFORD asked what the ratio of violations versus
misdemeanors is. He noted he understood that in all but the most
obvious cases, offenses are charged as violations because intent
must be proved, which is difficult to do.
MR. HARD replied in most cases, the criminal act is charged as a
misdemeanor initially, and for reasons of convenience at the
prosecutorial stage, many are reduced to violations where the
burden of proof is reduced. There is an incentive for defendants
to quickly adjudicate the matter through the lower penalties.
DPS's position is that by getting too tough, it threatens its
ability to enforce the regulations. When costs become so great or
threatening to fishermen, more intense and regular defenses will
result, and they will undoubtedly take DPS officials out of the
field to answer those defenses. DPS does not want to encourage
that and would like to see the violation point schedule retained.
CHAIRMAN HALFORD asked if Representative Ivan would like to see the
point schedule be doubled for violations versus misdemeanors.
MR. HARD asked for further clarification.
CHAIRMAN HALFORD explained the bill cut the point schedule in half.
All of the points would have to be doubled to have any effect on
violations.
TAPE 98-32, SIDE A
MR. HARD said under the current draft, the points are aimed against
the misdemeanant.
CHAIRMAN HALFORD explained that is correct because otherwise, it
takes four of the worst violations at six points within a three
year period to have any impact at all. Former Deputy Commissioner
Swackhammer made a major push to catch violators. Some people had
three or four violations within one fishing season but the fines
the violators paid were written off as a cost of doing business.
Chairman Halford said he is concerned that if we go all of the way
back to half the points, the schedule will never apply to anyone.
MR. HARD stated DPS is in its second fishing season of having a
district attorney who clearly oversees all of its commercial
fishing cases, primarily in the Bristol Bay area. DPS believes it
will not see those sorts of reductions that it has seen in past
cases, or at least there will be more argument against the
reductions in court.
CHAIRMAN HALFORD said he can understand the incentive to encourage
people to go down the scale, but he hates to give them half of the
points. He questioned whether there is anything in between that
still provides incentive to not contest, without making the
schedule out of reach.
SENATOR TAYLOR stated he has been frustrated by the gross numbers
of violations in the Bristol Bay fishery. He noted ADF&G has had
the ability to enforce those lines and do it in such a way that it
would have significant impact upon violators since day one. ADF&G
has always had the right to forfeit a vessel. Instead, it does not
opt to do that although it forfeits airplanes on guides frequently.
He stated the Legislature passed legislation that created the
violation approach which brings DPS a lot more revenue off of a
whole bunch of cases it did not want to have to try. They write
the cases up as misdemeanants assuming 90 percent will plead out
and not go to trial. Senator Taylor stated the Legislature needs to
make a philosophical decision about whether the state is going to
get serious about patrolling for violators in that area. He said
there should be some notification requirement for fishermen who are
in the process of crossing into a closed fishing area because of
engine failure or other uncontrollable situations so that those
fishermen do not get cited for violations when circumstances were
beyond their control.
CHAIRMAN HALFORD questioned whether cutting the points in half for
a first violation, but not for the second one within a 36 month
period, no matter whether it is a misdemeanor or a violation. He
stated he wants to give DPS and the prosecution the incentive to
plead out because it is a practical application that has a
deterring effect.
Number 143
SENATOR LINCOLN commented this bill will apply to all of Alaska,
not only Bristol Bay, and she is concerned that a person could
easily get 12 points in one season for doing something erroneously,
which is not the intent of the bill. She discussed a situation her
cousin found herself in when someone used her set net without her
knowledge. She was then forced to go and pick the net up which was
in closed waters. Her second concern is if this bill is enacted,
more violators will challenge their citations and the fiscal note
should not be zero.
CHAIRMAN HALFORD said, as Senator Taylor pointed out, this bill
will create another tool and DPS does not even use all of the tools
it has. He thought providing the flexibility to be lenient on the
first violation would work. He asked Mr. Hard if a fishermen had
a net in the water in a closed area, whether that fishermen would
be charged with fishing in closed waters or fishing out of season.
MR. HARD said it would be a closed waters citation and would not be
both.
CHAIRMAN HALFORD said that is why the two point violations were
removed because those types of violations do not make fishermen
money, they were usually mistakes.
SENATOR LINCOLN asked if DPS would cite a violator for both fishing
with gear not allowed in the fisheries and for possessing
prohibited size fish, which would add up to 12 points.
CHAIRMAN HALFORD said he was sure there were some combinations.
SENATOR LINCOLN questioned whether the maximum could be six points
for one incident.
CHAIRMAN HALFORD asked Mr. Hard to address that question.
MR. HARD replied each case is evaluated on its individuality by the
trooper's assessment. In cases where someone has committed an
egregious violation and multiple violations, multiple citations
could be issued and boats could be seized as well. Regarding the
scenario described by Senator Lincoln, he did not believe multiple
citations would be issued.
CHAIRMAN HALFORD asked Senator Lincoln what happened in her
cousin's situation.
SENATOR LINCOLN said she did not know what happened, she assumes
her cousin paid the fine.
SENATOR LEMAN remarked the gear was stolen.
SENATOR LINCOLN stated the state troopers do no know that. Her
cousin was cited for fishing in closed waters.
CHAIRMAN HALFORD suggested including a provision that decreases the
number of points by half for the first violation. That would
provide an incentive to plead out and take some of the load off of
the criminal justice system, but it still strengthens the schedule
against major violators.
Number 245
MR. WRIGHT stated he would have to speak to the sponsor, but did
not see anything wrong with that approach at first blush. He asked
whether that would apply to a second violation for the same
violation or for any violation.
CHAIRMAN HALFORD clarified the first time, no matter what the
violation is, the offender gets half the amount of points. The
second time the offender gets any violation, the full number of
points would be assessed.
CHAIRMAN HALFORD said the other question that remains is in regard
to the provision that gives two points back for each year a
violator gets no citations.
SENATOR TAYLOR stated some years ago he and Judges Hornaday and
Keane traveled all over the state and held hearings about the topic
of fish and game violations and disparate sentences, meaning
sentences that were dramatically different for the same offense.
The three judges recommended to the Supreme Court that a few more
people needed to be involved in the sentencing process at the
district court level, and that the judiciary needed to be better
educated about what was a meaningful violation. The Judiciary
disregarded the recommendations. Senator Taylor stated ADF&G
commits just as many errors as does the other side.
SENATOR GREEN moved to adopt a conceptual amendment dealing with
first violations at half points.
SENATOR TAYLOR clarified the amendment should specify within a 36
month period. He asked if the points are reinstated if a second
violation occurs.
CHAIRMAN HALFORD explained if a person commits a first violation,
not a misdemeanor, he/she will receive half of the points.
CHAIRMAN HALFORD stated there being no objection to the adoption of
the conceptual amendment, the motion carried.
Number 338
CHAIRMAN HALFORD stated there was a question on the two points per
year of no violations. The sponsor was concerned about that
provision. Chairman Halford said he would like to make the bill as
strong as possible but does not want to make it unworkable. He
clarified the bill allowed two points every year.
MR. HUBER said that was correct, two points every year from the
date of the last conviction. It was modeled after provisions in
the drivers' license program.
SENATOR LEMAN remarked according to the fiscal note there are 600
to 800 convictions per year. He asked the number of permit
holders.
MR. WRIGHT replied 12,000.
SENATOR LEMAN noted five per cent of permit holders are violators.
He noted he has been fishing for 40 years and has no accumulated
points. He emphasized a person has to be a nasty violator to
accumulate points.
CHAIRMAN HALFORD stated there did not appear to be committee
support to put back in the two points.
SENATOR LEMAN thought it was unnecessary.
MR. WRIGHT said once a violator gets 12 points, he/she is stuck
with the 12 points forever.
CHAIRMAN HALFORD clarified it is for three years.
Number 374
BRUCE TWOMLEY, Chairman of the Commercial Fisheries Entry
Commission, brought the committee's attention to page 4, lines 12-
16. The first part of Section D relates to not doing emergency
transfers when a permit is suspended or when enough points have
been accumulated. The last part relates to denying emergency
transfers when charges are pending charges, that might lead to a
suspension, would have the effect of prohibiting the transfer,
although he/she might chose to defend himself and became disabled
while fishing.
CHAIRMAN HALFORD said that interpretation is rare but possible.
SENATOR LEMAN suggested making an exclusion for medical transfers.
CHAIRMAN HALFORD noted that is what emergency transfers are usually
for. He stated that would take three violations. With the
amendment just adopted, no first violation will carry more than
three points, therefore it will take a third violation to
accumulate 12 points.
SENATOR TAYLOR said it depends on whether the charge is a violation
or a misdemeanor.
CHAIRMAN HALFORD remarked misdemeanor convictions require proof of
intent.
COMMISSIONER TWOMLEY suggested including an exception for a bona
fide medical emergency.
CHAIRMAN HALFORD asked what the other reasons are for an emergency
transfer.
COMMISSIONER TWOMLEY replied special sessions for legislators, but
the biggest category is medical.
SENATOR LEMAN suggested making an exception for life threatening
circumstances.
CHAIRMAN HALFORD suggested including a time limit.
COMMISSIONER TWOMLEY suggested including a physically disabling
medical emergency exception.
CHAIRMAN HALFORD questioned the result of allowing an emergency
transfer for a 30-day period only, which could be the entire
Bristol Bay season.
SENATOR TAYLOR did not think that would work well in Southeast
because the seining season lasts for 90 days. He stated in the
three brothers situation, the license would have to be sold.
SENATOR LEMAN thought it is quite unlikely that this circumstance
is going to happen.
The committee took a brief at-ease.
CHAIRMAN HALFORD suggested deleting lines 12-16 on page 4.
SENATOR TAYLOR so moved. There being no objection, the motion
carried.
MR. WRIGHT asked, on the point system where a permit holder
accumulates 12 or more points during a 36-month period, his/her
license is suspended for one year. If a permit holder gets 16 or
more points during a 48-month period, the suspension is for two
years, and if 18 or more points during a 60-month period, the
suspension is for three years, how that will work if the points are
dropped after 36 months.
CHAIRMAN HALFORD explained the points do drop off but not until the
end of the 60 month period.
SENATOR GREEN clarified three years are rolling.
Number 490
MR. HARD said, "If they don't just go away, what happens is from
the time a person is cited, you go back 12 months, 36 months, or 48
months, and if there are no other violations within that period,
that's how it's factored. Actually when I looked at it that way I
thought that dropping the points was probably redundant to this
system anyway."
MR. WRIGHT thanked Mr. Hard, and noted if a person is clean for
five years, they are starting over again.
Number 526
JERRY MCCUNE stated if people live way out in a village and have no
other way to make a living, they would put themselves out of
business by doing away with their permit, but the bill should not
prevent them from crewing for the season.
CHAIRMAN HALFORD remarked that person got him/herself into that
position by a serious string of violations.
SENATOR TAYLOR asked if the crew members get cited along with the
captain.
CHAIRMAN HALFORD said not necessarily. He asked Mr. Hard if crew
members who are not making the operational decisions are generally
cited.
MR. HARD said not generally.
CHAIRMAN HALFORD asked if crew members are cited if it looks like
they are running the operation.
MR. HARD said that is correct.
SENATOR TAYLOR noted everyone on a boat in Southeast Alaska is
charged with the same offense.
Number 526
MR. MCCUNE suggested prohibiting the permit holder from crewing on
his or her own boat. He stated his intent is not to defend repeat
violators, but to recognize the fact that in some villages there is
no other kind of work.
CHAIRMAN HALFORD suggested having the bill pertain to a permit
holder or person in charge of the boat.
MR. HARD said he thought Mr. McCune was trying to get at the
individual permit holder out in Western Alaska, who by virtue of
poor fishing, loses his permit. Then, his only course of income is
to become a crew member on another person's boat. He thought the
bill might be too harsh in that circumstance, but not in the
circumstance referred to by Chairman Halford.
CHAIRMAN HALFORD stated they pose two different questions, and the
committee might be trying to go beyond where it can reach.
MR. WRIGHT noted there might be circumstances where the skipper is
operating the boat but it does not appear that way, which could
cause a lot of confusion in the courts.
MR. TWOMLEY indicated the state has very tight records regarding
who is a permit holder. Crew members hold licenses, but there is
no way of knowing what boat they were on and following their
progress through a fishery.
CHAIRMAN HALFORD commented that he thought the way it is drafted
works because also the person you are worried about as a crew
member doesn't have a permit anyway.
Number 568
There being no further testimony on HB 285, CHAIRMAN HALFORD
requested a motion on the legislation.
SENATOR TAYLOR moved SCS CSHB 285(RES) and the accompanying fiscal
note be passed out of committee with individual recommendations.
Hearing no objection, it was so ordered.
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